Supreme Court Decides Bush Protest Case

May 27, 2014 - In a disappointing decision, the U.S. Supreme Court ruled today that we cannot sue Secret Service agents for their decision to have peaceful protesters moved blocks away from, and out of earshot of, President George W. Bush during his campaign visit to Jacksonville, Oregon in October, 2004. Our lawsuit alleged that Secret Service Agents moved our clients further away from the President only because of their vocal criticism of the President’s policies and that action violated the protesters’ constitutional free speech rights.

The unanimous opinion by Justice Ginsburg stressed that while the Constitution does not allow the Secret Service to treat protesters more harshly because of their viewpoint, the two agents were entitled to qualified immunity and dismissed our claims against them. Much of the Court’s opinion focused on the physical location of the protesters in relation to the President and found a “plausible” security justification for the Secret Service decision to move the protesters.

"We are disappointed by today’s ruling,” said Steven R. Shapiro, Legal Director of the American Civil Liberties Union. “No one disputes that the Secret Service has an overriding interest in protecting the President, but that does not include the right to shield the President from criticism, a critical distinction that the Court unanimously reaffirmed. In our view, the jury should have been allowed to decide whether this case was actually about security or censorship."

ACLU of Oregon Executive Director David Fidanque noted that the Supreme Court decision came 9 ½ years after the events at issue in the case.

“It has been especially frustrating that we still haven’t been able to get our clients their day in court,” Fidanque said. “The violation of the protesters’ free speech rights was just the beginning of the damage done that evening in Jacksonville. Our lawsuit also seeks to address the excessive force used against the peaceful, multi-generational gathering that night in 2004. Once the Secret Service gave the order to move the protesters, Oregon law enforcement officers gave confusing orders to the crowd and used batons and pepper-spray paintball pellets while forcing them to remain on a very narrow sidewalk that had many physical obstacles.”

Fidanque noted that the excessive force claims in the case against state and local police officials were not addressed by the Supreme Court decision and we will be discussing with our clients whether those claims still are worth pursuing now that the Secret Service agents have been dismissed from the case.

Supreme Court Hears Oregon Protest Case

March 26, 2014 - Washington D.C. - The Supreme Court heard oral argument today in Wood v. Moss, a case brought by us on behalf of a multi-generational group of peaceful protesters, who were forcibly moved on orders of the Secret Service to a place where their protests could no longer be seen or heard by President Bush. The protest took place during a visit to Jacksonville, Oregon in 2004. Demonstrators supporting the President were allowed to remain much closer to him.

The lawsuit claims that the protesters were targeted because of their political views in violation of their free speech rights.

“The Secret Service does not have immunity from the First Amendment,” said Steven M. Wilker, a lawyer with Tonkon Torp LLP in Portland, who argued the case as a cooperating attorney for the ACLU.

Plaintiffs supported their claim of viewpoint discrimination by alleging that they were treated less favorably that Bush supporters, that the decision to move them was not made until after the President sat down to dinner and could hear their chants, and was consistent with at least 12 similar incidents during the first Bush administration. In addition, the decision was also consistent with the Bush White House Advance Manual which instructed the President’s staff to “work with the Secret Service” to ensure that protesters were kept far away from the President’s view and hearing.

Nevertheless, the Justice Department has asked the Supreme Court to dismiss the case on the ground that plaintiffs’ claim of viewpoint discrimination is “implausible.” Defendants also argue that Secret Service agents could not have been expected to know in 2004 that their actions in this case violated the First Amendment even if plaintiffs’ allegations are accepted as true.

Both arguments were rejected by the United States Court of Appeals for the Ninth Circuit in a 2012 ruling.

“The job of the Secret Service is to shield the president from danger, not from criticism,” said Steven R. Shapiro, the national legal director of the ACLU.

The initial complaint in this case was filed in 2006 and there have been two appeals of lower court decisions to deny the federal government’s motions to dismiss the case. If plaintiffs prevail in the Supreme Court, the case will finally proceed to discovery and trial.

“The right to engage in peaceful political protest lies at the very heart of the First Amendment,” said David Fidanque, executive director of the ACLU of Oregon. “The government essentially is arguing that the courts should trust the Secret Service agents based on faith, rather than evidence. Our clients are entitled to have the case go forward so that they can finally have their day in court.”

Local Police in Case Tied to 2004 Anti-Bush Demonstration

March 13, 2014 - The U.S. Supreme Court is set to decide whether or not protesters in Jacksonville, Oregon have the right to sue federal Secret Service agents for their role, nearly 10 years ago, in targeting a peaceful demonstration for discriminatory treatment because of the protesters’ viewpoints opposing the policies and actions of President George W. Bush. The protest was organized around the president’s visit to Jackson County, Oregon on October 14, 2004 as part of his re-election campaign. Ever since the ACLU Foundation of Oregon filed a lawsuit on behalf of the protesters in 2006, the federal defendants have tried, more than once, to have our lawsuit against them dismissed and have failed. Now the Supreme Court will decide if our case, Wood v. Moss, against the Secret Service agents can go forward or not.

On the evening of the president’s visit to the Jacksonville Inn, U.S. Secret Service agents directed state and local police in to move an anti-Bush picket line of approximately 200-300 peaceful demonstrators while at the same time allowing a group of pro-Bush demonstrators to remain in the same area undisturbed. The state and local police effort turned violent as the officers used excessive force to move the multigenerational group of anti-Bush demonstrators. As a result, the ACLU Foundation of Oregon filed a federal lawsuit against the Secret Service as well as state and local police agencies, and the individual agents and officers, seeking damages and an injunction against such governmental abuse in the future.

The federal defendants have been trying for several years to have the case against them thrown out on procedural issues, even before we can get to the merits of what happened that day. The latest attempt by the federal government to have our clients’ claims dismissed will be argued before the U.S. Supreme Court on March 26, 2014 and a decision from the Court is expected by summer. The federal government is asking the Court to overturn the decision of the 9th Circuit Court of Appeals that we have adequately stated a claim against the Secret Service agents for violating our clients’ First Amendment rights by treating them differently than the pro-Bush demonstrators and that the Secret Service agents can be sued for damages for their actions because they should have known their actions were unlawful.

Unfortunately, over the past 10 years this Supreme Court has repeatedly issued decisions that make it harder and harder for individuals to get their day in court for violations of their civil rights by federal officers. But we’re used to uphill battles for civil liberties. We will continue to pursue claims on behalf of our clients and we look forward to our eventual day in court.

Steven Wilker of Tonkon Torp LLP is Counsel of Record and will argue the case before the Court. He and his Tonkon Torp colleagues Paul Conable and James Hein are providing their services pro bono. ACLU of Oregon Legal Director Kevin Díaz and Art Spitzer of the ACLU of the Nation's Capital will join Steven at counsel table. National ACLU Legal Director Steve Shapiro and Ben Wizner, Director of the ACLU Speech, Privacy and Technology Project have also assisted with the briefs in the Supreme Court. The late Ralph Temple was a member of the legal team from the beginning of the case until his death in 2011.

Previous Reports:

The government has been trying to have the case thrown out for several years, even before we can get to the merits of what happened that day. The latest attempt to have our clients’ claims dismissed is the subject of the second ruling by the 9th Circuit Court of Appeals in this case.

On April 9, 2012, the court found that we have stated a claim against the Secret Service for violating our clients’ First Amendment rights by treating them differently than the pro-Bush demonstrators and that the Secret Service can be sued for their actions because they should have known their actions were unlawful.

Our complaint also alleges that two Oregon State Police officials should be held responsible for the excessive force used by police under OSP direction. Peaceful protestors were pushed, clubbed and pepper sprayed by law enforcement to break up the anti-Bush demonstration. On this claim the court held that though "it was clearly established at the time of the protest that the use of pepper spray on an individual who is already under control constitutes excessive force in violation of the Fourth Amendment, the claim failed because the supervisors were not present at the scene.” The appeals court left it to the trial court to decide whether we should be given an opportunity to amend our complaint to show why the supervisors should be held responsible for the constitutional violations. The ACLU will continue to pursue claims on behalf of our clients and we look forward to our eventual day in court.

Thanks to Steven Wilker of Tonkon Torp who argued the case, his colleague Paul Conable, and Art Spitzer of the ACLU of the National Capital Area for all of their hard work.

On August 4, 2010, U.S. Magistrate Judge Mark Clarke issued his Report and Recommendations in Moss et al. v. U.S. Secret Service et al. In this class action suit the ACLU represents individuals and groups that protested outside the Jacksonville Inn on Oct. 14, 2004, while President Bush was dining at the inn.

The lawsuit, filed in federal court in 2006, alleges the U.S. Secret Service and state and local law enforcement unconstitutionally chose to move only demonstrators who were critical of the President away from the inn. Magistrate Clarke heard oral argument on defendants’ motions to dismiss on May 12, 2010, and now recommends that several of our key First and Fourth Amendment claims against federal, state and local law enforcement should proceed.

U.S. District Judge Owen Panner has yet to adopt the recommendations but is expected to issue his order within the next few weeks.

This case is shaping up as one of the first key tests of the impact of the U.S. Supreme Court’s decision in Ashcroft v. Iqbal that erected new barriers to claims of unconstitutional conduct by the federal government. Prior to Iqbal, an individual who alleged harm by the government could file suit and be assured she or he could demand documents from the government that are relevant to the case. The Supreme Court has now said such cases should be dismissed at the outset unless the plaintiff has alleged facts that are “plausibly suggestive” the plaintiff is entitled to relief.

Our fear has been that this new standard could make it virtually impossible ever to successfully sue the government. That is why it is significant that Magistrate Clark concluded that ACLU has met this higher burden in Moss. Not surprisingly, the Department of Justice disagrees.No matter how Judge Panner rules, the case is almost certainly headed to the Ninth Circuit U.S. Court of Appeals—for the second time. The only question is when.

The cooperating attorneys are Steven Wilker, Paul Conable, James Hein, Tonkon Torp LLP, and Ralph Temple and Art Spitzer, past and present legal directors of the ACLU of the National Capitol Area, respectively.

In June 2009, the US Supreme Court, in the case of Ashcroft v. Iqbal,129 S. Ct.. 1937 (2009), changed the rule for filing a lawsuit in federal court that had prevailed for over half a century. Prior to the Iqbal decision, the rule had been that a plaintiff need allege only enough facts which, if proven true, would entitle him/her to the legal remedy sought. In Iqbal, the court’s right-wing, 5-4 majority replaced that standard with a new rule requiring the plaintiff to file a complaint which contained enough detail to make the allegations “plausible.”

In July 2009, the U.S. Court of Appeals for the 9th Circuit ruled that our lawsuit must be dismissed under the new standards of the Iqbal decision.

The court ruled that because the Iqbal standards were new, we should have a chance to file a Second Amended Complaint with enough detail to make it “plausible.”

October 2006 - This summer, the ACLU of Oregon filed a class-action lawsuit against the U.S. Secret Service, the Oregon State Police, the Jackson County Sheriff and the Jacksonville Police Department for their use of force against peaceful anti-Bush demonstrators during the President’s visit to Jacksonville in Southern Oregon.

On October 14, 2004, President George W. Bush made a campaign appearance in Central Point, Oregon. He was scheduled to spend the evening at the Jacksonville Inn. The plaintiffs in our case organized a demonstration for that afternoon. They first gathered in Griffin Park, a few blocks from the Inn. They then marched to the Inn alongside the sidewalks. Prior to the protest, the organizers contacted the local police chief and sheriff to inform them of the route, the expectation that there would be parents and young children participating and that this was organized as a peaceful event.

By late afternoon about 200 anti-Bush protesters had gathered at the park. In accordance with the plan, around 6 p.m., the demonstrators set off along the pre-designated route. They assembled on the sidewalks in front of the Jacksonville Inn, chanted and waved signs. At all times they remained peaceful, and traffic continued to move easily along the streets. Nearby, pro-Bush demonstrators also gathered, chanting and displaying signs. The two groups remained courteous.

Just before the President’s arrival at the Inn, police in riot gear cleared the alley behind the Inn. Officers also began restricting the movement of the anti-Bush demonstrators, dividing the group and not allowing them to cross streets or leave sidewalks. When the President arrived he entered the Inn through the back door, joining other diners already eating on the patio.

The anti-Bush protesters continued to peacefully chant slogans, which could be heard in the patio area where the President was dining. The Secret Service then requested local police to clear the streets in front of the Inn. In riot gear, with an armored personnel carrier behind them, the police made amplified but garbled announcements that the group was now unlawful and must move from the sidewalks. At no time did police contact the organizers who had earlier offered to act as liaisons with the police. Without allowing any time for the protesters to respond, police forced them down the street, striking participants with clubs and firing pepper-spray bullets. Police then divided the demonstrators into two groups, encircling each and preventing them from leaving the area. Several were trying to leave, including those with young children. Several families were separated, including parents from their young children. Eventually, the demonstrators were allowed to leave.

During this entire time, the police took no action against the pro-Bush demonstrators or the unscreened guests dining at the Inn.

As a result, ACLU brought this action in U.S. District Court. ACLU sees this event as part of an ongoing nationwide pattern by the Secret Service of keeping anti-Administration demonstrators further away from the President than pro-Administration demonstrators or even the general public.

In addition to seeking damages for the individuals injured by the police action, ACLU also seeks an injunction to prevent similar constitutional violations from occurring in the future. In particular, we seek to prevent the defendants from excluding or removing a lawful assembly of people from areas where other unscreened members of the public are allowed to congregate or be present, and excluding or removing anti-government demonstrators from areas where pro-government demonstrators are allowed. We also ask the court to prohibit federal, state and local agencies from using riot-geared police, excessive force, less-than-lethal force or chemical agents against nonviolent demonstrators.

ACLU filed this action in the U.S. District Court in Medford. We named seven individuals to represent the class of almost 200 demonstrators, as well as the Jackson County Pacific Green Party. The ACLU has been represented by cooperating attorney Martha Walters of Walters Chanti & Zennache. In addition, our other volunteer attorneys include Thane Tienson of Landye Bennett Blumstein, Heather Van Meter, Williams, Kastner & Gibbs, Ralph Temple, former Legal Director of the ACLU of the National Capital Area and now an Ashland resident, and Art Spitzer, the current Legal Director of the ACLU of the National Capital Area.